21 FLRA No. 126
NATIONAL TREASURY EMPLOYEES
UNION
Union
and
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
Agency
Case No. 0-NG-1013
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
because of a negotiability appeal filed under Section 7105(a)(2)(E) of
the Federal Service Labor-Management Relations Statute (the Statute).
It raises issues concerning the negotiability of a single Union
Proposal.
II. Union Proposal
The employer will pay travel and per diem for all union
employee negotiators.
A. Positions of the Parties
The Agency contends that the proposal is not within the duty to
bargain for the following reasons:
1. It does not concern conditions of employment within the
meaning of section 7103(a)(14) of the Statute because payment of
travel expenses is specifically provided for by law;
2. it is inconsistent with Federal law and Government-wide
regulation; and
3. the demand for travel and per diem to employee/negotiators
is not limited to those employee/negotiators who are receiving
official time.
In its response, the Union states that the proposal "must conform to
the Travel Act -- a point we do not contest . . . ." See Union Response
at page 4. Finally, the Union maintains that its proposal is intended
to provide travel and per diem reimbursement only to unit employees
authorized to be at the bargaining table on official time.
B. Analysis
1. "Conditions of Employment"
The Agency makes an essentially identical "conditions of employment"
argument to that made by the agency in National Treasury Employees Union
and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2
(1986) appeal docketed sub nom. Department of Treasury, U.S. Customs
Service v. FLRA, Case No. 86-1198 (D.C. Cir. March 27, 1986). The
Authority rejected that argument in Customs Service and it is rejected
here for the same reasons set forth in that case.
2. Inconsistent with Federal Law and Goverment-wide Rules
or Regulations
The Agency contends, in essence, that under the Travel Expense Act, 5
U.S.C. Sections 5701 et seq., and the Federal Travel Regulations (FTRs),
41 CFR, Part 101-7, a determination as to whether an employee is on
"official business" is dependent on the particular facts involved in
each individual situation. Consequently, such a determination is not a
matter of unlimited discretion on the part of the Agency.
For reasons set forth in our decision in Customs Service, the
Authority has found that agencies have discretion, under the Travel
Expense Act and implementing regulations, to determine whether and under
what circumstances travel attendant to labor-management relations
activities is sufficiently within the interest of the United States so
as to constitute official business and, hence, to pay for resulting
appropriate expenses from Federal funds. The exercise of that
discretion was held to be subject to the negotiation process. The
Agency here makes no specific argument that the proposal does not meet
the statutory and regulatory standards discussed in Customs Service.
There is no indication in the record that the Union intends the proposal
to be applied contrary to the Federal Travel Regulations. On the
contrary, we note that the Union's Response indicates that the proposal
is to be read to be in conformity with the Travel Act. Given these
circumstances, and for the reasons fully expressed in Customs Service,
the Agency's assertion that the proposal is inconsistent with law and
Government-wide regulations must be rejected.
3. Limited to Those Employee/Negotiators Who Are Receiving
Official Time
The Agency contends that the proposal would entitle
employee/negotiators who are not receiving official time to travel and
per diem. However, in our view the proposal does not necessarily
require payment of travel and per diem to those employee/negotiators who
are not receiving official time. Indeed, the Union, as previously
noted, interprets the proposal to limit travel and per diem
reimbursement to only unit employees authorized to be at the bargaining
table on official time. We adopt the Union's interpretation of its
proposal for purposes of our decision noting, in any event, that nothing
in our analysis in Customs Service indicates that travel and per diem
payments depend upon a contemporaneous grant of official time under
section 7131. Instead, the negotiability of travel and per diem is
based on consideration of whether the travel involved is in the primary
interest of the Government so as to constitute "official business".
Consequently, we find the Agency's contention not to be supported.
C. Conclusion
Based on the foregoing analysis, the Authority finds that the
proposal concerns a condition of employment which is not inconsistent
with law or Government-wide regulation. Therefore, the proposal is
within the duty to bargain. /*/
III. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning the Union
Proposal.
Issued, Washington, D.C., May 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
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(*) In deciding that the proposal is negotiable, the Authority makes
no judgment as to its merits.